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NHS Trusts reporting babies as stillborn to avoid public inquests

The Telegraph reported this week that some NHS Trusts appear to be deliberately noting baby deaths as stillbirths to avoid having to refer their deaths to Coroners and the public scrutiny of an inquest.

There is no legal definition of a stillbirth. The medical definition of a stillbirth is a baby born after 24- weeks gestation who did not breathe or have any other signs of life after they was expelled from their mother.

Under coronial rules, Coroners do not have authority to investigate stillbirths. There are, however, some Coroners who may decide of their own volition, to investigate a 'stillbirth' if they consider the circumstances warrant investigation.

Coroners are only required to hold inquests into the circumstances of baby deaths where there were signs of life after the baby was born. In other words, when a baby dies during the neonatal period.

Helen Thompson currently acts in a case in which Baby E was born at a central London Hospital with no signs of life after a midwife failed to summon assistance despite the trace of the baby's heart rate being at times significantly abnormal and at others not detectable, for more than 40 minutes.

After intensive resuscitation, a heart rate was found but sadly could not be sustained and Baby E died when resuscitation ceased. The death was noted by the hospital as an Early Neonatal Death which should be referred to the Coroner. The maternity team reportedly raised that Baby E's death should be reported to the Coroner, but after discussions between the neonatal doctors, it was decided that the death was due to 'natural causes' and should not be referred to the Coroner. 

Doctors also decided that they had enough medical evidence about the baby's death to sign the death certificate and authorise that the baby's body could be cremated. Where a referral to the Coroner should be made, doctors should not issue the certificate because cause of death is for a Coroner to determine following an investigation. Also, where an inquest is to be held, the body of the deceased should be preserved and cremation should not be authorised. Once the body has been cremated, a Coroner no longer has jurisdiction to hold an inquest.

It was only after the Healthcare Safety Investigation Branch (HSIB) undertook an independent investigation into the circumstances surrounding Baby E's death that it informed the hospital Trust that they must refer the matter to the Coroner.

The referral was made but hospital consultants then reported the death to the Coroner's office as a stillbirth.

At an initial hearing, the Coroner concluded that there had been "signs of life" during resuscitation of Baby E when a heart rate was temporarily found. The Coroner therefore concluded that this was not a stillbirth.

As there was evidence that issues in care contributed to the death and that it was an 'unnatural death', the Coroner considered that her jurisdiction to hold an inquest was engaged. But since Baby E's body had been cremated (as authorised by the hospital doctors), the Coroner could not automatically hold an inquest. For this reason, the matter had to be referred to the Chief Coroner and permission to hold an inquest was granted.

At preliminary hearings, the Coroner expressed to the NHS Trust representatives that she had very significant concerns that the Trust had not referred Baby E's death to her immediately as they should have done and that when the referral was made, the death was reported as a stillbirth. No reasonable explanation was given by the Trust for this despite the Coroner asking on several occasions why this was the case. Needless to say, the issues relating to the failure to refer Baby E's death to the Coroner has caused the family significant distress.

The Ockenden Review earlier this year highlighted failings and issues in maternity care in NHS hospitals which have resulted in avoidable maternal and baby deaths. While the intention of the Review was to facilitate more openness and transparency where errors occur, unfortunately, it seems that some NHS Trusts are now going to lengths to avoid public scrutiny of inquests when deaths occur during labour and shortly after a baby is born.

The inquest in this matter is expected to take place in early 2023. A civil claim in relation to the baby's death is ongoing.

The parents of Baby E commented:  

'Helen encouraged us to ask the hospital for E's death to be referred to the coroner. We did so, and they told us that it did not meet the criteria.

'The bereavement midwife assigned to us told us that we were 'lucky' that E's death was registered as a neonatal death rather than a stillbirth because it meant I could still get all of my maternity benefits (which is not accurate). This always stuck out as odd.

'When the HSIB updated us in May about the report, our contact there said she had pushed to refer it to the Coroner, but the hospital told her it was a stillbirth so it wasn't possible. I told her that actually, the hospital had registered his death as a neonatal death and not a stillbirth, so she went back and pushed again. This was when she had some traction, but it is clear that the hospital had tried to deny the request initially here too.'

Find out more about inquests and birth injury claims.

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